8:01 am

Sat June 15, 2013

Will The Court's Gene Ruling Stifle Bio Innovation?

This is WEEKEND EDITION from NPR News. I'm Scott Simon. The Supreme Court ruled unanimously on Thursday that patenting natural human genetic material must stop. But the court also ruled that synthetically produced DNA is fair. The decision was prompted by patents on a gene test for breast cancer which was issued to Myriad Genetics of Salt Lake City. We're joined now in our studio by Arthur Caplan, who's head of the Division of Medical Ethics at NYU's Langone Medical Center. Thanks very much for being with us.

ARTHUR CAPLAN: Thanks for having me.

SIMON: What do you think this ruling means for Myriad Genetics and other biotech companies?

CAPLAN: Well, for Myriad, it means less than you might think because their patent was going to run out in another year. For other genetic testing companies that have sort of presumed we own the intellectual property, we see a gene sequence, we know that it associates with a disease, the decision is not good news. They're going to lose their monopoly practice, prices will drop, competition will enter the genetic testing market. So, I think that's good for patients, not so good for the industry.

CAPLAN: I think it's way, way, way overdue. It's the correct decision. You know, to make a metaphor, it is as if Galileo Galilee had a telescope and looked up and saw the moons of Jupiter and said I'm patenting those. I discovered them. You don't get patents for discovery. You get publications. In my world, you get tenure. You might even get a Nobel Prize if it's a really interesting discovery, but you don't get a patent. And what the Supreme Court basically did was it said, look, these genes just exist. You're finding their function, you're understanding their correlation in terms of what a misprint causes a disease. But you didn't do anything. You just found what's out there. So, I think the decision is sound.

SIMON: Even if it's philosophically sound, did - if I might put it this way - monetizing discoveries provide incentive for new and better discoveries?

CAPLAN: It did. There's no doubt that people said, look, it's kind of like the Oklahoma land rush. We're going to rush out over the human genome, stake our claims, have patent protection. It gives us an incentive to go out there and look through the vast number of genes that make up us and figure out whether we can find disease correlations and so on. That said, that was kind of the old model, Scott. The newer way to go at this is to change those genes - try to insert a gene, alter a gene.

SIMON: This is the synthetic material.

CAPLAN: That's the synthetic side. And that's where the action is now. It's not, you know, the companies that were out there doing what I'm calling the turf grabs across the genome, in a way I think their work is over and the action is going to be on the synthetic side.

SIMON: Which I think to repeat - what we said when introducing you - that's legally fine, right?

CAPLAN: That's legally fine. The court made a point of saying if you change genes, alter genes, insert genes or put chemicals around genes to make them do something different or even thaw out certain genes so that you can get a cleaner understanding of what the key genetic components are - all patentable, all fine. And I would agree with that.

SIMON: I guess I didn't understand until I read about the decision, as we read about it this week, the degree to which, I guess it's been called, patent trolling has been going on.

CAPLAN: It's a big problem, because people will do two things: they will claim the patent, not really understanding fully what those genes do and just try to fend off anybody else from coming into that territory. And then there are people who sort of go around and say, you know, I'm going to buy that patent and block anybody from being able to enter research in this area unless you pay me a pretty good size fee. Not good for patients, not good for genetic testing - pretty good for entrepreneurs who get - and lawyers who get involved in that kind of trolling business.

SIMON: If you foresee - and a lot of people do - that synthetically produced DNA is going to be maybe in a better position to take off now, surely there are ethical implications for that, too.

CAPLAN: Oh, there are huge ones. One interesting angle here is, you know, we love our own genes. We're humans; we think our genes must be the best, we're at the top of the food chain of evolution. But synthetic biology has been working at the microbe level. There are simpler systems. They're easier to alter. This court decision is not restricted to human genes. That is patents have been taken out on the plants, on microbes, on animals. All of that moves into flex a little bit too. In the synthetic field, I think what we're seeing is a lot of activity of people trying to insert genes into a virus to say make proteins that would be useful medically, alter a virus to see whether it could act like a vaccine and attack, say, Ebola or something that got into us, or the flu. And in other areas, you're seeing people engineer viruses and bacteria to try and do things like suck pollution out of the ocean waters and so on. So, a big area of activity but probably not where you might think. It's not the humans that are the target so much as the microbes.

SIMON: Arthur Caplan. Head of the Division of Medical Ethics at NYU's Langone Medical Center. Thanks very much for joining us, Art.

CAPLAN: Thanks very much for having me. Transcript provided by NPR, Copyright NPR.